Brawner v. Lomax

Breese, J. On reason and authority, the title to the chattels in controversy, as between the parties, Smith and the Lomaxes, passed unconditionally to Smith at the time the possession was delivered by the Lomaxes to him. The sale was complete, and the delivery unconditional, as all the proof shows. This being so, Brawner had a perfect right to purchase the chattels of Smith and take possession of them. Smith v. Dennis, 6 Pickering, 262; Jennings v. Goss et al., 13 Ill. R. 611; Brundage v. Camp, 21 ib. 330. The verdict was against the evidence, and a new trial should have been awarded. Upon the other point, that the demurrer to the defendant’s fourth special plea, should have been carried back to the declara tion, on the presumption the narr. was defective, we have to say, the record would present a strange appearance, if, after a demurrer to the declaration has been overruled and the general issue pleaded, a demurrer to a defective plea should be carried back to the declaration. The general issue disposes of the demurrer, and of matters to be reached by it, in every subsequent stage of the proceedings. It is only by allowing a party to plead double, that this question can arise, so that no guide can be afforded for adjudication on the point, by the decision of the English or American courts, where this kind of pleading is not allowed. The record would not look well with a general demurrer to a declaration overruled, and then carried back over the general issue, when filed to a defective special plea. The judgment of the Circuit Court is reversed, on the first point, and the cause remanded. Judgment reversed.